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Parliamentary Library analysis of the latest counter-terrorism Bill


On 5 August 2014, the Government announced significant reforms to counter-terrorism laws. The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, introduced on 24 September 2014, proposes extensive amendments to a range of Commonwealth legislation as part of the Government’s response to the increased threat of terrorism posed by Australians engaging in, and returning from, conflicts in foreign States. The Parliamentary Library’s Bills Digest provides independent analysis of the Bill, and identifies the following key issues for debate.

For Schedule 1—main counter-terrorism amendments:

  • whether the case has been made to extend the control order, preventative detention, Australian Security Intelligence Organisation (ASIO) questioning and detention powers and stop, search and seizure provisions for a further ten years, and if so, what review mechanisms should accompany that extension
  • the need for, and appropriateness of, the introduction of a new offence of ‘advocating terrorism’
  • whether the proposed ‘declared area’ offences are appropriate and reasonable, including considering if the exceptions to the offences amount to a reverse onus of proof
  • the adequacy of the safeguard of the court’s discretion in removing the application of the rules of evidence for terrorism-related material gathered under the Foreign Evidence Act 1994
  • the adequacy or otherwise of accountability for, and safeguards relating to, amendments concerning the suspension and cancellation of travel documents
  • whether amendments should be made to the proposed offence of disclosing information about delayed notification search warrants to explicitly permit public interest reporting
  • the proposed additions to the grounds on which control orders may be made and
  • the consequences and desirability of lowering the arrest threshold for police to from ‘reasonably believes’ to ‘reasonably suspects’ in relation to the investigation of terrorism offences.

For Schedule 2—stopping welfare payments:

  • whether the measure is necessary given existing eligibility rules and counter-terrorism laws, and the lack of evidence that benefits are being used in support of terrorist activities and
  • concerns about the impact on families, limited review and appeal mechanisms, and the extent of the Attorney-General’s powers in determining individual welfare entitlements.

For Schedule 3—Customs’ detention powers:

  • the significant expansions proposed to existing powers to detain persons on law enforcement grounds and
  • the necessity and appropriateness of the proposed power to detain persons on national security grounds.

For Schedule 4—cancelling visas on security grounds:

  • whether the emergency cancellation of visas is necessary given the existing powers in the Migration Act 1958
  • whether the revocation of cancellation provisions are workable
  • if the threshold for determining whether ASIO suspects a person might be a direct/indirect risk to security is too low, thereby causing significant disruption to a great number of travellers and
  • the appropriateness of consequential cancellations of visas of family members of cancelled visa holders.

For Schedule 5—identifying persons in immigration clearance and Schedule 6—identifying persons entering or leaving Australia through Advance Passenger Processing:

  • the increased reporting on passengers leaving Australia and
  • whether the privacy implications of the collection, access to, retaining and disclosure of information have been sufficiently addressed.

Parliamentary committee consideration

The Bill was referred to both the Parliamentary Joint Committee on Intelligence and Security (PJCIS) and the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 17 October 2014 so that it could be debated and passed during the Spring 2014 sittings.

The Senate Standing Committee for the Scrutiny of Bills released an extensive Alert Digest in which it sought further detail and justification from the Attorney-General on many aspects of the Bill.

The Parliamentary Joint Committee on Human Rights has not yet reported on the Bill. However, several stakeholder submissions to the PJCIS’s inquiry raised concerns about whether the limitations to rights and freedoms that would result from the amendments are proportionate.

Further information—Members and Senators (and staff) only

Parliamentary Library researchers can respond to individual enquiries about the Bill from Parliamentarians and their staff. The main points of contact are:

  • general enquiries—Cat Barker or Monica Biddington
  • questions about terrorism offences, proscription of terrorist organisations, foreign incursions (including ‘declared areas’) offences and foreign evidence rules—Monica Biddington
  • questions about control orders, preventative detention, ASIO questioning and detention powers, suspension and cancellation of travel documents, delayed notification search warrants, Customs detention powers and extensions to sunset clauses—Cat Barker
  • questions about cancelling welfare payments—Michael Klapdor and
  • questions about visa cancellations, immigration clearance and Advance Passenger Processing—Moira Coombs.
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